Page 721 - Week 02 - Thursday, 12 February 2009

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or documents to an independent legal arbiter, for evaluation and report within seven calendar days as to the validity of the claim.

(7) The independent legal arbiter is to be appointed by the Speaker and must be a Queen’s Counsel, a Senior Counsel or a retired Supreme Court Judge.

(8) A report from the independent legal arbiter is to be lodged with the Clerk and:

(a) made available only to Members of the Assembly; and

(b) not published or copied without an order of the Assembly.

(9) If the independent legal arbiter upholds the claim of privilege the Clerk shall return the document(s) to the Chief Minister’s Department.

(10) If the independent legal arbiter does not uphold the claim of privilege, the Clerk will table the document(s) that has been the subject of the claim of privilege. In the event that the Assembly is not sitting, the Clerk is authorised to release the document to any Member.

(11) The Clerk is to maintain a register showing the name of any person examining documents tabled under this order.

This is an important motion designed to amend the Assembly’s standing orders to insert a new temporary order to govern issues on orders for the production of documents. It is a standing order proposed to be introduced as a result of the agreement between the Labor Party and the Greens in relation to matters of parliamentary reform.

It is well understood in parliaments around the country and internationally that parliaments can make orders for the production of documents. This right has been upheld by High Court decisions in recent years which have recognised that the ability of the parliament to call for any document is paramount and must be respected by the executive arm of government. However, there is an inevitable tension between the role of the executive in maintaining confidentiality of certain documents and the right of parliament to call for those documents. It is in many respects similar to the debate that we had yesterday in relation to freedom of information and the ability of the executive to conduct its business in a way which is subject to some levels of confidentiality on some issues.

This standing order, therefore, is designed to provide a mechanism for the resolution of that inevitable tension. It provides that the Assembly may order any document to be tabled in the Assembly and a mechanism for that to be communicated by the Clerk to the Chief Minister’s Department in relation to the documents needing to be produced. It then sets out that, in relation to documents against which there is no claim of executive privilege, the documents are to be provided to the Clerk by the Chief Minister’s Department within seven days and the Clerk is obliged to table those documents in the Assembly. That is the relatively straightforward part of this mechanism.

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